Browning v. Northend Body Shop Ltd., 2017 HRTO 1151

Human Rights Tribunal of Ontario

Between:

Natalie Browning Applicant

-and-

Northend Body Shop Ltd. Respondent

Reconsideration Decision

Adjudicator: Dawn J. Kershaw Date: September 6, 2017 Citation: 2017 HRTO 1151 Indexed as: Browning v. Northend Body Shop Ltd.

Written Submissions

Northend Body Shop Ltd., Respondent Farid Arbi, Counsel

Introduction

1On August 4, 2017, the Tribunal issued its Decision in this Application, 2017 HRTO 1001, upholding the Application. The respondent has asked the Tribunal to reconsider its Decision.

Background

2The Tribunal’s Decision found that the respondent discriminated against the applicant and ordered both a monetary and non-monetary remedy.

The Request for Reconsideration

3The Request for Reconsideration provides the following reasons why the Tribunal should reconsider its Decision:

a. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; and

b. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

4The respondent appears to disagree with the monetary remedy, and instead requests a different remedy.

The Law

5Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

6The Tribunal has issued Rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008, last amended April 2014). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision.

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

7The Tribunal’s Practice Direction on Reconsideration includes the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

8As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

Analysis and Conclusions

9I find that the respondent has not met the burden of establishing any of the threshold criteria justifying reconsideration.

10As indicated above, the respondent relies on Rule 26.5(c) and (d). It submits that the remedy should not have been a monetary one, but instead the respondent should be ordered to begin accepting co-op students for placement again.

11In support of its Request, the respondent essentially repeats arguments made orally before the Tribunal. A request for reconsideration is not an opportunity to restate or re-argue a position already advanced and considered.

12I am not convinced that any findings made in the Decision are in conflict with established jurisprudence, nor did the respondent provide any details with respect to how they were in conflict.

13It is important to note that the remedy raised in this Request was the subject of submissions before the Tribunal, and was dealt with in its Decision. In Sigrist, above, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions. I find that the submissions in this Request amount to additional argument on issues already fully canvassed before the Tribunal.

14The Tribunal also stated in Sigrist that a “conflict with established jurisprudence or procedure” requires (at a minimum) that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. While the respondent clearly disagrees with the conclusions of the Tribunal, I am satisfied that its submissions on this Request do not establish that the Tribunal’s Decision conflicts with established jurisprudence.

15The applicant also has not raised any other factors that, in the opinion of the Tribunal, outweigh the public interest in the finality of the decision.

16In sum, I find that the respondent has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the Tribunal’s Decision. The Request is denied.